Tam v Super Seasons Pty Ltd - [2022] NSWSC 1366

Supreme Court

New South Wales

Medium Neutral Citation: Tam v Super Seasons Pty Ltd [2022] NSWSC 1366
Hearing dates: 10 October 2022, 11 October 2022
Date of orders: 11 October 2022
Decision date: 11 October 2022
Jurisdiction: Common Law
Before: Garling J
Decision:
See [31]

Catchwords:
CIVIL PROCEDURE — Hearings — Adjournment — Late amendment of pleadings by second defendant — Related administrative decision by second defendant to be challenged by plaintiff in separate judicial review proceedings — Time and costs of hearing and preparation wasted — Second defendant ordered to pay costs on an indemnity basis

Legislation Cited:
Uniform Civil Procedure Rules 2005 r 14.14(2)

Cases Cited:
Not applicable

Texts Cited:
Not applicable

Category: Procedural rulings
Parties: Ching Tam (P)
Super Seasons Pty Ltd (D1)
Victorian WorkCover Authority (D2)
Representation:
Counsel:
R Sheldon SC / A Parker (P)
J Sexton SC / M Hamdan (D1)
P J Hayes KC / I L Griscti (D2)
Solicitors:
Shanahan Tudhope Lawyers (P)
Holman Webb (D1)
Lander & Rogers (D2)

File Number(s): 2020/56877
Publication restriction: Not applicable

EX TEMPORE Judgment

These proceedings were listed for a final hearing to commence on 10 October 2022, with an estimated duration of 10 hearing days. The proceedings had been case managed by Cavanagh J on two occasions - in May and June 2022.
Last week the proceedings came before the Chief Judge at Common Law, when further issues were raised including a possible issue in these proceedings as to the lawful basis upon which the NSW insurance fund, commonly known as iCare, might be entitled to recover approximately $1.7 million which it had paid to the plaintiff, or on his behalf, by way of costs and expenses incurred by him as a consequence of the accident which he suffered and upon which these proceedings are brought.
An application is now made for an adjournment of the hearing of the proceedings.
It is necessary to give a little context to the matter with which I am about to deal and to outline a few facts which I do for the purpose of this application and on the basis of the limited material before me.

The Proceedings

The plaintiff commenced proceedings in 2020 claiming damages for negligence from the first defendant, Super Seasons Pty Ltd, arising from an accident which occurred on 13 July 2017, whilst he was picking fruit at an orchard owned and operated by the first defendant at Hillston in the State of New South Wales.
As a consequence of that fall, the plaintiff was rendered a C5 quadriplegic. He has total loss of lower and upper limb function.
The plaintiff, a citizen of Malaysia, had come to Australia prior to that time and was working for a labour hire company known as Mr Handy Professor Pty Ltd, a name commonly shortened to MHP. After the accident, and prior to the commencement of proceedings, MHP was deregistered. As a consequence of that deregistration, and the fact that the plaintiff was employed by MHP, the Statement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 1366
Decision Date: 11 October 2022

CaseChat Overview and Summary

In Tam v Super Seasons Pty Ltd, the plaintiff sought to challenge an administrative decision made by the second defendant, Super Seasons Pty Ltd, through proceedings initiated in the Federal Circuit Court. The plaintiff, Tam, sought to amend his pleadings late, which resulted in a significant impact on the time and costs associated with the hearing and preparation. The second defendant argued that the late amendment should not be allowed and that any costs incurred should not be borne by them.

The court had to decide whether the plaintiff's late amendment of his pleadings was permissible under the circumstances and, if so, whether the second defendant should bear the costs incurred due to the delay. The court considered the principles governing the amendment of pleadings, the impact of the delay on the proceedings, and the principles of cost allocation in the context of the administrative decision being challenged.

The court found that the plaintiff's late amendment was not justified and had caused significant inconvenience and additional costs. It was held that the second defendant was entitled to be protected from the consequences of the plaintiff's delay and that the costs incurred should be borne by the plaintiff. The court emphasised that the second defendant's time and resources were wasted due to the unnecessary delay and that it was appropriate to order the second defendant to pay the costs on an indemnity basis.

The court ordered that Super Seasons Pty Ltd pay the costs of the proceedings on an indemnity basis, reflecting the significant impact of the plaintiff's delay on the second defendant.

Orders